FAMILY COURT OF AUSTRALIA
| RALTON & RALTON | [2017] FamCAFC 182 |
| FAMILY LAW – APPEAL – CHILDREN – With whom the children live – Application of domestic and international human rights law under the Family Law Act 1975 (Cth) – Procedural fairness – Bias – Weight attributed to the evidence – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Mother to pay the father’s costs of the appeal. FAMILY LAW – APPEAL – COSTS – Where the mother sought to appeal a costs order relating to an unsuccessful stay application – Where the grounds of appeal are not competent – Appeal dismissed. APPEAL – APPLICATION IN AN APPEAL – Further evidence – Evidence of events which have occurred after the orders appealed from were made – Improperly obtained evidence – Evidence which was available to the mother at the time of the hearing before the primary judge – Consideration of principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application to issue subpoenas – Subpoenas not an appropriate procedure for an appeal – Application dismissed. |
| Australian Human Rights Commission Act1986 (Cth) s 4 Family Law Act 1975 (Cth) ss 60B(4), 62G, 65D(2), 93A(2), 117 |
| Family Law Rules 2004 (Cth) rr 1.19, 15.59–15.64 United Nations Convention on the Rights of the Child Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | Ms Ralton |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Ralton Ebejer & Associates |
| FILE NUMBER: | MLC | 10904 | of | 2009 |
| APPEAL NUMBERS: | SOA | 46 | of | 2016 |
| SOA | 59 | of | 2016 |
| DATE DELIVERED: | 7 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Strickland & Aldridge JJ |
| HEARING DATE: | 24 February 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 June 2016 |
| LOWER COURT MNC: | [2016] FCCA 1832 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McLeod |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ebejer & Associates |
Orders
The Independent Children’s Lawyer have leave to appear and present oral submissions in response to the submissions of the mother.
Appeals SOA…
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- Ralton & Ralton [2017] FamCAFC 182
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- [2017] FamCAFC 182
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CaseChat Overview and Summary
The mother’s appeal challenged the primary judge’s assessment of the evidence and the weight attributed to it. The mother argued that the primary judge was biased against her and that the decision was contrary to the principles of procedural fairness. The mother also argued that the primary judge erred in finding that the father was the more suitable parent to care for the children. The Full Court found that there was no merit in the grounds of appeal. The Court held that the primary judge’s findings were open on the evidence and that there was no error in the primary judge’s assessment of the evidence. The Court also held that there was no evidence of bias or procedural unfairness.
The mother’s application for leave to adduce further evidence was dismissed as the evidence was either improperly obtained or was available to the mother at the time of the primary hearing. The Court held that the evidence was not relevant to the issues before the Court and that it did not assist in the determination of the appeal. The Court also held that the evidence was not admissible as it was hearsay and was not properly before the Court. The mother’s application for subpoenas to be issued was dismissed as subpoenas were not an appropriate procedure for an appeal. The Court held that the mother’s application was an abuse of process and that it was not appropriate for the Court to issue subpoenas in the context of an appeal.
The mother’s application to appeal the costs order was dismissed as the grounds of appeal were not competent. The Court held that the mother’s grounds of appeal were not sufficient to establish that the primary judge’s decision was wrong or unjust. The Court also held that the mother had not demonstrated that the primary judge’s decision was outside the range of reasonable decisions which could have been made on the evidence. The Court held that the mother’s application was an abuse of process and that it was not appropriate for the Court to grant leave to appeal the costs order. The mother was ordered to pay the father’s costs of the appeals as agreed or in default of agreement as assessed. The Independent Children’s Lawyer was granted leave to appear and present oral submissions in response to the submissions of the mother.
Orders
Orders of the court
1.
The Independent Children’s Lawyer have leave to appear and present oral submissions in response to the submissions of the mother.
2.
Appeals SOA 46 of 2016 and SOA 59 of 2016 be dismissed.
3.
The Applications in an Appeal filed on 16 December 2016 and 13 February 2017 be dismissed.
4.
The mother is to pay the father’s costs of the appeals as agreed or in default of agreement as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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